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Nirmal Singh v. State Of U.P. And Others - WRIT - A No. 13553 of 2004  RD-AH 5987 (3 April 2007)
Court No. 25
Civil Misc. Writ Petition No. 13553 of 2004
State of U.P. and others
Hon'ble Sudhir Agarwal, J.
Heard Sri Ashok Khare, learned senior counsel assisted by Sri B.D. Tripathi, learned counsel for the petitioner and learned Standing Counsel for the respondents.
The writ petition is directed against the order dated 23.3.2004 (Annexure-13 to the writ petition) passed by the Senior Staff Officer, Irrigation Department on behalf of Engineer in Chief imposing punishment of reduction in rank reverting the petitioner to the post of Sinchai Paryavechak from the post of Ziledar pursuant to a departmental enquiry.
In brief the facts as stated in the writ petition are that the petitioner was initially appointed as Irrigation Supervisor (Sinchai Paryavechak). He was promoted as Ziledar. A FIR was lodged against him on 23.5.1995 alleging that he had indulged in felling/cutting of nine trees pursuant whereto a criminal case was registered as Case No. 714 of 1997 under Section 379 IPC and Section 4/10 Forest Protection Act wherein he was ultimately acquitted on 28.5.1998. In the meantime in respect to the aforesaid act and omission an adverse entry was awarded to him which was challenged by the petitioner in Writ Petition No. 16549 of 1999 and this Court stayed the same order dated 20.4.1999. The respondents has also passed the order recovering cost of the alleged lost trees whereagainst the petitioner filed another Writ Petition No. 15472 of 1996 wherein the order of recovery issued against the petitioner was stated. Subsequently, a charge sheet was issued to the petitioner on 10.3.1997 and after holding an enquiry a report was submitted on 27.1.1999 which ultimately culminated in the order of reversion dated 13.1.2000 whereagainst the petitioner filed a Claim Petition No. 1071 of 2000 before U.P. Public Service Tribunal which was allowed vide judgment dated 30.3.2001 and the punishment order was quashed on the ground of denial of adequate opportunity to the petitioner and the respondents were given liberty to hold the fresh enquiry from the state of charge sheet. Pursuant thereto the Engineer in Chief passed order dated 10.7.2003 appointing one Superintending Engineer, Drainage Mandal, Meerut as Enquiry Officer and directing him to hold fresh inquiry. It is said that the said Inquiry Officer issued charge sheet to the petitioner which was received by him on 16.10.2003 thereafter without holding any oral enquiry a report was submitted by the Enquiry Officer and disciplinary authority has passed the impugned order of punishment on 23.3.2004 again imposing punishment of reduction in rank of the petitioner.
Sri Khare, learned Senior Counsel appearing for the petitioner vehemently contended that without holding any oral enquiry major punishment could not be awarded to the petitioner and in violation of the U.P. Government Servant (Discipline and Appeal) Rules, 1999.
The respondents have filed counter affidavit wherein it has been said in general that the disciplinary enquiry has been conducted in accordance with law after giving opportunity of defence inasmuch as he has submitted his reply to the charge sheet and therefore, the allegation that there is denial of opportunity is false.
This Court vide order dated 15.3.2007 directed the respondent no. 2 to produce the enquiry record pertaining to petitioner. Sri Deep Kumar Gupta, Engineer in Chief, Irrigation Department presented himself before the Court alongwith the record, a perusal whereof shows that though Enquiry Officer issued letters fixing date for oral enquiry directing the petitioner to submit his defence but as a matter of fact no oral enquiry has been conducted. It is well settled law that no major punishment can be imposed upon a government servant without holding departmental inquiry in accordance with Rules giving him adequate opportunity of defence, which includes oral enquiry which is an integral part of the principle of natural justice. In Subhash Chandra Sharma Vs. Managing Director and another, 2000 (1) UPLBEC 541, a Division Bench of this Court considering the question as to whether holding of an oral enquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subhash Chandra Sharma Vs. U.P. Cooperative Spinning Mills and others, 2001 (2) UPLBEC 1475 and Laturi Singh Vs. U.P. Public Service Tribunal and others, Writ Petition No. 12939 of 2001, decided on 6th May, 2005.
An oral enquiry would be necessary even if the delinquent employee has failed to submit reply to the charge sheet. In State of U.P. and another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831, the Hon'ble Apex Court held that even if the employee has failed to submit reply to the charge sheet, it would not absolve the Enquiry Officer from proceeding with the oral enquiry and submit report as to whether charge is proved or not. After recording of evidence, he will find out whether the charge is proved or not and submit report to the disciplinary authority. Again in Special Appeal No. 533 of 2004, (Chandra Pal Singh Vs. Managing Director, U.P. Co-operative Federation and others) decided on 12.10.2006 the Court held as under:-
"In out view, where the major punishment like dismissal or removal is likely to be imposed, the Enquiry Officer is bound to hold oral enquiry wherein first of all the department must prove the charge and thereafter the delinquent employee shall have an opportunity to repel such evidence by production his evidence."
The aforesaid exposition of law makes it clear that the delinquent employee has a right to defend himself at different stages. When the charge sheet is served upon him, he has right to submit his reply and in case he does not submit reply, that itself would not amount to admission of guilt or that the charge stand proved. If the allegations are serious and may result in major penalty, the disciplinary authority may appoint Enquiry Officer. Such Enquiry Officer, thereafter would have to fix a date for oral evidence. At this stage the delinquent employee has a right to participate in the oral enquiry, examine witnesses, if produced by the department, and after the evidence of the department is completed, the delinquent employee may produce evidence in his defence. During the course of oral enquiry, the delinquent employee has right to participate at every stage and date and if there is any failure in participation on one or more occasions, the Enquiry Officer cannot deny him participation from the subsequent stage. The delinquent employee can participate at subsequent other stage. The Enquiry Officer, after completion of oral enquiry, will submit its report after discussing the entire material and if any charge is proved, the disciplinary authority shall supply a copy of the enquiry report to the delinquent employee and he would again have a right to submit reply to the enquiry report.
Admittedly, since the case in had no oral enquiry has been conducted though major penalty has been imposed upon the petitioner, the order of punishment cannot be sustained.
In view thereof the writ petition succeeds and is allowed. The impugned order dated 23.3.2004 (Annexure-13 to the writ petition) is quashed. The petitioner is also entitled for all consequential benefits. The respondents shall however be at liberty to hold a fresh enquiry against the petitioner after giving due opportunity of hearing in accordance with law. The petitioner shall also be entitled for cost which is quantified at Rs. 2000/-.
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